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State v. Trump

United States District Court, D. Hawaii

March 29, 2017

STATE OF HAWAI‘I and ISMAIL ELSHIKH, Plaintiffs,
v.
DONALD J. TRUMP, et al., Defendants.

          ORDER GRANTING MOTION TO CONVERT TEMPORARY RESTRAINING ORDER TO A PRELIMINARY INJUNCTION

          Derrick K. Watson, United States District Judge.

         INTRODUCTION

         On March 15, 2017, the Court temporarily enjoined Sections 2 and 6 of Executive Order No. 13, 780, entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States, ” 82 Fed. Reg. 13209 (Mar. 6, 2017). See Order Granting Mot. for TRO, ECF No. 219 [hereinafter TRO]. Plaintiffs State of Hawai‘i and Ismail Elshikh, Ph.D., now move to convert the TRO to a preliminary injunction. See Pls.' Mot. to Convert TRO to Prelim. Inj., ECF No. 238 [hereinafter Motion].

         Upon consideration of the parties' submissions, and following a hearing on March 29, 2017, the Court concludes that, on the record before it, Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief. Accordingly, Plaintiffs' Motion (ECF No. 238) is GRANTED.

         BACKGROUND

         The Court briefly recounts the factual and procedural background relevant to Plaintiffs' Motion. A fuller recitation of the facts is set forth in the Court's TRO. See TRO 3-14, ECF No. 219.

         I. The President's Executive Orders

         A. Executive Order No. 13, 769

         On January 27, 2017, the President of the United States issued Executive Order No. 13, 769 entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States, ” 82 Fed. Reg. 8977 (Jan. 27, 2017).[1] On March 6, 2017, the President issued another Executive Order, No. 13, 780, identically entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”), 82 Fed. Reg. 13209. Like its predecessor, the Executive Order restricts the entry of foreign nationals from specified countries and suspends the United States refugee program for specified periods of time.

         B. Executive Order No. 13, 780

         Section 1 of the Executive Order declares that its purpose is to “protect [United States] citizens from terrorist attacks, including those committed by foreign nationals.” By its terms, the Executive Order also represents a response to the Ninth Circuit's per curiam decision in Washington v. Trump, 847 F.3d 1151. According to the Government, it “clarifies and narrows the scope of Executive action regarding immigration, extinguishes the need for emergent consideration, and eliminates the potential constitutional concerns identified by the Ninth Circuit.” Notice of Filing of Executive Order 4-5, ECF No. 56.

         Section 2 suspends from “entry into the United States” for a period of 90 days, certain nationals of six countries referred to in Section 217(a)(12) of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq.: Iran, Libya, Somalia, Sudan, Syria, and Yemen. 8 U.S.C. § 1187(a)(12); Exec. Order § 2(c). The suspension of entry applies to nationals of these six countries who (1) are outside the United States on the new Executive Order's effective date of March 16, 2017; (2) do not have a valid visa on that date; and (3) did not have a valid visa as of 5:00 p.m. Eastern Standard Time on January 27, 2017 (the date of Executive Order No. 13, 769). Exec. Order § 3(a). The 90-day suspension does not apply to: (1) lawful permanent residents; (2) any foreign national admitted to or paroled into the United States on or after the Executive Order's effective date (March 16, 2017); (3) any individual who has a document other than a visa, valid on the effective date of the Executive Order or issued anytime thereafter, that permits travel to the United States, such as an advance parole document; (4) any dual national traveling on a passport not issued by one of the six listed countries; (5) any foreign national traveling on a diplomatic-type or other specified visa; and (6) any foreign national who has been granted asylum, any refugee already admitted to the United States, or any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture. See Exec. Order § 3(b). Under Section 3(c)'s waiver provision, foreign nationals of the six countries who are subject to the suspension of entry may nonetheless seek entry on a case-by-case basis.

         Section 6 of the Executive Order suspends the U.S. Refugee Admissions Program for 120 days. The suspension applies both to travel into the United States and to decisions on applications for refugee status. See Exec. Order § 6(a). It excludes refugee applicants who were formally scheduled for transit by the Department of State before the March 16, 2017 effective date. Like the 90-day suspension, the 120-day suspension includes a waiver provision that allows the Secretaries of State and Homeland Security to admit refugee applicants on a case-by-case basis. See Exec. Order § 6(c). Unlike Executive Order No. 13, 769, the new Executive Order does not expressly refer to an individual's status as a “religious minority” or refer to any particular religion, and it does not include a Syria-specific ban on refugees.

         II. Plaintiffs' Claims

         Plaintiffs filed a Second Amended Complaint for Declaratory and Injunctive Relief (“SAC”) on March 8, 2017 (ECF No. 64) simultaneous with their Motion for TRO (ECF No. 65). The State asserts that the Executive Order inflicts constitutional and statutory injuries upon its residents, employers, and educational institutions, while Dr. Elshikh alleges injuries on behalf of himself, his family, and members of his Mosque. SAC ¶ 1.

         According to Plaintiffs, the Executive Order results in “their having to live in a country and in a State where there is the perception that the Government has established a disfavored religion.” SAC ¶ 5. Plaintiffs assert that by singling out nationals from the six predominantly Muslim countries, the Executive Order causes harm by stigmatizing not only immigrants and refugees, but also Muslim citizens of the United States. Plaintiffs point to public statements by the President and his advisors regarding the implementation of a “Muslim ban, ” which Plaintiffs contend is the tacit and illegitimate motivation underlying the Executive Order. See SAC ¶¶ 35-60. Plaintiffs argue that, in light of these and similar statements “where the President himself has repeatedly and publicly espoused an improper motive for his actions, the President's action must be invalidated.” Pls.' Mem. in Supp. of Mot. for TRO 2, ECF No. 65-1. Plaintiffs additionally present evidence that they contend undermines the purported national security rationale for the Executive Order and demonstrates the Administration's pretextual justification for the Executive Order. E.g., SAC ¶ 61 (citing Draft DHS Report, SAC, Ex. 10, ECF No. 64-10).

         III. March 15, 2017 TRO

         The Court's nationwide TRO (ECF No. 219) temporarily enjoined Sections 2 and 6 of the Executive Order, based on the Court's preliminary finding that Plaintiffs demonstrated a sufficient likelihood of succeeding on their claim that the Executive Order violates the Establishment Clause. See TRO 41-42. The Court concluded, based upon the showing of constitutional injury and irreparable harm, the balance of equities, and public interest, that Plaintiffs met their burden in seeking a TRO, and directed the parties to submit a stipulated briefing and preliminary injunction hearing schedule. See TRO 42-43.

         On March 21, 2017, Plaintiffs filed the instant Motion (ECF No. 238) seeking to convert the TRO to a preliminary injunction prohibiting Defendants from enforcing and implementing Sections 2 and 6 of the Executive Order until the matter is fully decided on the merits. They argue that both of these sections are unlawful in all of their applications and that both provisions are motivated by anti-Muslim animus. Defendants oppose the Motion. See Govt. Mem. in Opp'n to Mot. to Convert TRO to Prelim. Inj., ECF No. 251. After full briefing and notice to the parties, the Court held a hearing on the Motion on March 29, 2017.

         DISCUSSION

         The Court's TRO details why Plaintiffs are entitled to preliminary injunctive relief. See TRO 15-43. The Court reaffirms and incorporates those findings and conclusions here, and addresses the parties' additional arguments on Plaintiffs' Motion to Convert.

         I. Plaintiffs Have Demonstrated Standing At This ...


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